TMI Blog2018 (1) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... t all. Thus we uphold the preliminary objection raised by learned A.S.G.I. We declare that Criminal Writ Petitions filed before this Court are not maintainable. We also clarify that the observations made by us supra, are in the light of arguments advanced and only to the extent necessary to evaluate the same. The same will not have any bearing or influence on the pending appeal before the Appellate Authority under 2002 Act, or pending prosecutions before the Special Court at New Delhi. Accordingly Writ Petitions are dismissed - CRIMINAL WRIT PETITION Nos. 697, 463, 343, 489, 549 & 607 OF 2017 - - - Dated:- 13-10-2017 - B.P. DHARMADHIKARI ARUN D. UPADHYE, JJ. Mr. S.P. Dharmadhikar, Senior Advocate with Mr. S.Dewani, Advocate for Petitioner in Writ Petition No.697/2017. Mr. H. D.Dangre, Advocate for Petitioner in Writ Petition No.463 489/2017. Mr. A.A. Naik, Advocate for Petitioner in Writ Petition No. 549/2017. Mr. D.V. Chauhan, Advocate for Petitioner in Writ Petition No.343/2017. Mr. S. Khedkar, Advocate for Petitioner in Writ Petition No.607/2017. Mr. U.M. Aurangabadkar, A.S.G.I. with Mrs. M.Chandurkar, Advocate for Respondents. (Per B.P. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner in Writ Petition No.607/2017. 5. To understand the controversy, we find that narration of facts in Writ Petition No. 697/2017 argued as lead matter, more than sufficient. The petitioner is Managing Director of various companies and as per charge sheet no.20/15, filed by CBI, EO III in Regular Case No. 221/2014/EOO16, he fraudulently applied in the year 2000 01 to Ministry of Coal for allocation of coal block. Application was moved by Gondwana Ispat Limited, a Company before its incorporation. Various other details are also then given. In charge sheet it is claimed that the petitioner disposed of his 50% equity in said Gondwana Ispat Limited at a profit of ₹ 7,50,000/ . It is also claimed that he disposed off the company without installing plant and developing the coal mine for captive consumption. This was without any intimation and permission from Ministry of coal. It is claimed that the agreement for sale of equity shares by M/s. Gondwana Ispat Limited dated 28.10.2005 with Shri Nandkishore Sarda and Shri Govind Daga consisted of two parts. As per part I of the Schedule, petitioner received ₹ 10 lakhs, while as per PartII, he was to receive an amount of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Shri Dharmadhikari, submits that facts as presented by the investigating agency itself show that money laundering has surfaced in 2015, and provisional attachment order was passed on 12.09.2016. This order has been confirmed on 08.02.2017. Relying upon provisions of Article 20 of the Constitution of India, he submits that in present facts alleged offence, if any, was complete in 2005 or then in any case 2011, when petitioners got ₹ 1.56 Crores. Section 120 B or Section 420 of Indian Penal Code do not form part of Schedule of 2002 Act then and hence, the retrospective application of 2002 Act in present facts is unconstitutional. He adds that facts are not in dispute and though petitioners deny any such crime, and all related facts, presuming facts disclosed by the investigating agency to be correct, the above argument needs to be upheld. 9. Learned Senior Counsel draws our attention to Section 3, Section 4 of 2002 Act along with Section 2[u], defining proceeds of Crime and Section 2[y] defining Schedule Offences , to explain the relevance thereof for the purpose of proviso to Section 4. He submits that Section 120 B of Indian Penal Code dealing with criminal conspiracy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.S.G.I., briefly points out that all petitioners are already facing trial at New Delhi except Shri N.K. Sarda. P.M.L.A. attachment is on the basis of information gathered during said investigation and he adds that at the most petitioners could have approached this Court in appeal against order of attachment. He also adds and reiterates that proceedings under Section 3 and prosecution for scheduled offence are independent of each other. He therefore prays for dismissal of petitions. 13. Thus, petitioners before this Court mainly contend that action for attachment taken against them is in respect of a scheduled offence and offence under Section 120B and 420 of Indian Penal Code, came to be added to the Schedule in its paragraph no.1 either in 2013 or 2009. Their submission is, before this addition, alleged offence was already complete and hence for such completed act provisions of 2002 Act, cannot be invoked. 14. The attachment in present matters has been considered and cleared under Section 8[1] of the 2002 Act. The provisions of Section 8[1] envisage satisfaction of the adjudicating authority, that any person has committed an offence under Section 3, or is in possession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undering. Its' wide scope is also apparent from efforts like concealment, possession, acquisition or use and projecting or claiming such money as untainted property attempted to be dealt with therein. Thus, this mode and manner of dealing with proceeds constitutes it an offence of money laundering. Again this mode and manner is not exhaustive, but, only inclusive and hence, there may be other types of steps or action possible in relation to such money or tainted property. Together, Section 3 therefore, occupies maximum possible field to prohibit money laundering. We find that the Courts while interpreting it must construe it as liberally as possible to advance the interest of public revenue. 18. Section 4 prescribes punishment for money laundering and it is in two parts. Its substantive part prescribes rigorous imprisonment for a term not less then 3 years and upto 7 years. It has a proviso which speaks of laundering of money, if such money is in connection with offence specified in paragraph no.2 of Part A of the Schedule. If that be the case, the maximum possible punishment is upto 10 years. Paragraph no.2 of schedule deals with offence under Narcotic Drugs and Psychotropi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court, CBI filed charge sheet against Girish Kumar Suneja and others. On 29.04.2016, learned Special Judge appointed to hear Criminal case arising out of illegal allocation of coal blocks directed framing of charges. Against that order, Misc. Criminal Case was filed in Delhi High Court by Girish Suneja. Before High Court in the backdrop of paragraph no.10 of order dated 25.07.2014, passed by the Hon'ble Supreme Court, preliminary objection regarding maintainability of the Writ Petition was taken. Learned Single Judge of Delhi High Court dismissed the petition as not maintainable, and against that an appeal came before the Hon'ble Supreme Court at the instance of Shri Suneja. Facts mentioned in judgment of the Hon'ble Supreme Court show that a Special Judge has been nominated for trial of the coal block allocation cases. 21. It will be appropriate to reproduce paragraph no.2 of this judgment in case of Shri Suneja, as it quotes order dated 25.07.2014 passed by the Hon'ble Supreme Court itself. 2. Much earlier, on 25th July, 2014 the following order was passed by this Court in the Coal Block Allocation cases (the relevant extract is reproduced): 4. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allocation of coal blocks, High Court ought not to have intervened and should have left it to the Hon'ble Supreme Court. Alleged violation of Article 14 of the Constitution of India is the looked into in paragraphs 42 to 46. Again finding given is against Shri Suneja. Violation of Article 21 is the aspect looked into in paragraph no.47 onwards upto paragraph no.49. The observations in paragraph no.49 are important and the same are reproduced below. 49. It must not be forgotten that the cases arising out of the coal block allocations are not ordinary cases but fall under a special or distinct category which requires special attention given the magnitude of the illegalities allegedly committed including some with criminal intent. It is in this view of the matter that this Court had no option but to hand over the investigations to the CBI and to monitor the investigations so that they reach their logical conclusion, without any interference from any quarter. The magnitude of the illegalities is such that it appears that even the integrity of the Director of the CBI was prima facie compromised, and this Court had to intervene and direct investigations into the conduct of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of property. 26. Accused persons have filed an appeal on 24.03.2017 before the Appellate Tribunal under 2002 Act at New Delhi and it is pending before that Tribunal. 27. These facts sufficiently reveal, at least at this stage and before this Court in its jurisdiction under Article 226, that the link between the pending prosecution for coal block allotment and the attachment order which gave rise to present writ petitions cannot be ignored. 28. It is apparent that this court cannot make any observation and record any finding which will interfere with proceedings pending before the Appellate Tribunal. It is also apparent that this court cannot and could not have passed an order granting any interim relief to the petitioners in present matters. In ground No.9[g] in Writ Petition No. 697/2017, the petitioner has stated that the trial of offence under Sections 420 and 120 B of Indian Penal Code is at the stage of recording of statement of accused under Section 313 Criminal Procedure Code. Arguments advanced show that the matter has not progressed further because of interim directions of this Court. 29. Though petitioners have not relied upon the judgment delivered by the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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